Alec Stone Sweet
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199256488
- eISBN:
- 9780191600234
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256489.003.0004
- Subject:
- Political Science, Comparative Politics
This paper is the first part of a much longer version (co-authored by Maragaret McCown) that was presented at the Colloquium on Law, Economics, and Politics, at the Law School, New York University, ...
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This paper is the first part of a much longer version (co-authored by Maragaret McCown) that was presented at the Colloquium on Law, Economics, and Politics, at the Law School, New York University, in October 2000; it is one of two that examine some of the problems posed by the method of law-making that is associated with the rule of precedent and the common law doctrine of stare decisis. Stone Sweet provides explicit theoretical foundations for the path dependence of legal institutions, and an argument as to why this should matter to social scientists and to lawyers. The paper elaborates a model of adjudication in which institutional development and decision-making are linked through highly organized discursive choice-contexts – meso structures called ‘argumentation frameworks’, which are curated by judges as legal precedents. Litigants and judges are assumed to be rational utility-maximizers, but they are also actors who pursue their self-interest in discursive ways, through argumentation and analogic reasoning, and sustained, precedent-based adjudication leads to outcomes that are both indeterminate and incremental: i.e. they are path dependent. The paper concludes by addressing various implications of the argument which, taken together, define an agenda for research.Less
This paper is the first part of a much longer version (co-authored by Maragaret McCown) that was presented at the Colloquium on Law, Economics, and Politics, at the Law School, New York University, in October 2000; it is one of two that examine some of the problems posed by the method of law-making that is associated with the rule of precedent and the common law doctrine of stare decisis. Stone Sweet provides explicit theoretical foundations for the path dependence of legal institutions, and an argument as to why this should matter to social scientists and to lawyers. The paper elaborates a model of adjudication in which institutional development and decision-making are linked through highly organized discursive choice-contexts – meso structures called ‘argumentation frameworks’, which are curated by judges as legal precedents. Litigants and judges are assumed to be rational utility-maximizers, but they are also actors who pursue their self-interest in discursive ways, through argumentation and analogic reasoning, and sustained, precedent-based adjudication leads to outcomes that are both indeterminate and incremental: i.e. they are path dependent. The paper concludes by addressing various implications of the argument which, taken together, define an agenda for research.
